EXHIBIT 10.1
STRATEGIC ALLIANCE AGREEMENT
This Strategic Alliance Agreement (this "Agreement") is entered into as of the
15th day of October, 2003 (hereinafter referred to as the "Effective Date"), by
and between Sunset Capital investments, Inc., a Maryland corporation
(hereinafter referred to as "SCI"), Sunset Mortgage Company, L.P., a
Pennsylvania limited partnership ("SMC"), Sunset Commercial Group, LLC, a
Pennsylvania limited liability company ("SCL") and Sunset Direct Lending LLC, a
Delaware limited liability company ("SDL" and together with SCL and SMC
collectively referred to herein as "Sunset Mortgage").
WITNESSETH:
WHEREAS, Sunset Mortgage is regularly and actively engaged in the business of
originating residential and commercial mortgage loans (collectively, "Mortgage
Loans");
WHEREAS, SCI is a real estate investment trust that intends to invest in
residential and commercial mortgage loans; and
WHEREAS, Sunset Mortgage and SCI wish to enter into a strategic alliance
regarding the origination of Mortgage Loans by Sunset Mortgage and the purchase
of Mortgage Loans by SCI.
NOW, THEREFORE, in consideration of the foregoing and of the mutual premises
hereinafter expressed, the parties hereto do mutually agree as follows:
ARTICLE I. SCOPE OF STRATEGIC ALLIANCE.
A. Sunset Mortgage shall continue to originate Mortgage Loans in
accordance with its historical practices. Commencing as of January 1, 2004, on a
monthly basis, SCI shall provide Sunset Mortgage with one or more pricing sheets
("Pricing Sheets") in which SCI shall provide loan parameters (including loan to
value ratio, credit scores and other criteria) applicable to Mortgage Loans and
the applicable pricing for such Mortgage Loans. Sunset Mortgage agrees and
acknowledges that as to any and all Mortgage Loans originated by Sunset Mortgage
or its affiliates that are within the parameters set forth in the applicable
Pricing Sheets, SCI shall have a right of first refusal to purchase such
Mortgage Loans as set forth herein.
B. On a regular basis (but no less frequently than monthly), Sunset
Mortgage shall send a written report (a "Mortgage Loan Report") to SCI setting
forth in reasonable detail all Mortgage Loans within the parameters set forth in
the applicable Pricing Sheets. No later than 2 days following its receipt of a
Mortgage Loan Report (the "Initial Election Period"), SCI shall send written
notice to Sunset Mortgage specifying the Mortgage Loans set forth in the
Mortgage Loan Report that SCI is interested in purchasing (a "Preliminary
Purchase Notice"). The Preliminary Purchase Notice shall constitute an offer by
SCI to purchase the Mortgage Loans set forth therein at the price set forth in
the applicable Pricing Sheets and upon the terms set forth herein. In the event
that SCI shall fail to deliver a Preliminary Purchase Notice to Sunset Mortgage
prior to the expiration of the Initial Election Period, then Sunset Mortgage may
sell the Mortgage Loans set forth in the applicable Mortgage Loan Report to one
or more third parties without regard to this Agreement.
C. No later than two Business Days after its receipt of a Preliminary
Purchase Notice (the "Election Period"), Sunset Mortgage shall elect to sell the
Mortgage Loans described in the Preliminary Purchase Notice for the purchase
price set forth in the applicable Pricing Sheets (a "Sale Election") or elect to
offer the Mortgage Loans to SCI at a higher price than set forth in the
applicable Pricing Sheets (a "Repricing Election"). Sunset Mortgage shall make a
Sale Election or a Repricing Election by delivery of written notice to SCI
during the Election Period. In the event that Sunset Mortgage shall fail to
deliver such written notice to SCI prior to the expiration of the Election
Period, then Sunset Mortgage shall be deemed to have made a Sale Election with
regard to all of the Mortgage Loans set forth in the Preliminary Purchase
Notice. For purposes hereof "Business Day" shall mean any day other than
Saturday or Sunday or other day on which national banks in Jacksonville, Florida
are required or permitted by applicable law to close.
D. SCI may, by delivery of written notice to Sunset Mortgage on or
before the expiration of two Business Days after receipt by SCI of the Repricing
Election (the "Repricing Election Period"), elect to purchase all or any portion
of the Mortgage Loans originally set forth in the Preliminary Purchase Notice at
the price set forth in the Repricing Election. In the event that SCI shall fail
to deliver such written notice prior to the expiration of the Repricing Election
Period, then SCI shall be deemed to have elected not to purchase the Mortgage
Loans that are subject to such Repricing Election. As to any Mortgage Loans that
are subject to a Repricing Election that SCI does not elect to purchase
hereunder (collectively, "Market Mortgage Loans"), Sunset Mortgage may, after
expiration of the Repricing Election Period (or, if sooner, receipt of written
notice from SCI that it shall not purchase such Market Mortgage Loans), market
and sell such Market Mortgage Loans to one or more third parties at the price
set forth in the applicable Repricing Election; provided, however, that if
Sunset Mortgage proposes to sell any Market Mortgage to any third party
purchaser at a price that is less than the price set forth in the applicable
Repricing Election (or upon terms more favorable than originally offered to
SCI), it shall first offer such Market Mortgage to SCI again at such reduced
price or upon such more favorable terms (each a "Re-Offered Mortgage") by
delivery of written notice to SCI (a "Re-Offer Notice"). SCI shall have two
Business Days following its receipt of a Re-Offer Notice (the "Re-Offer Period")
to elect to purchase one or more Re-Offered Mortgages by delivery of written
notice to Sunset Mortgage (a "Re-Offer Purchase Notice"). In the event that SCI
shall fail to deliver a Re-Offer Purchase Notice prior to the expiration of the
Re-Offer Period, then SCI shall be deemed to have elected not to purchase such
Re-Offered Mortgages as of the last day of the Re-Offer Period. As to any
Re-Offered Mortgages that SCI does not elect to purchase hereunder, Sunset
Mortgage may, after expiration of the Re-Offer Period (or, if sooner, receipt of
written notice from SCI that is shall not purchase such Re-Offered Mortgages)
sell such Re-Offered Mortgages to one or more third party purchasers at the
price set forth in the Re-Offer Notice; provided, that if Sunset Mortgage
proposes to sell any Re-Offered Mortgage to any third party purchaser at a price
that is less than the price set forth in the Re-Offer Notice (or upon terms more
favorable than originally offered to SCI), it shall offer such Re-Offered
Mortgage to SCI again in accordance with the procedures set forth herein with
regard to Re-Offered Mortgages.
E. Sunset Mortgage may freely sell, without regard to the provisions of
this Agreement, (i) any Mortgage Loans that are not within the parameters set
forth in the Pricing
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Sheets, and (ii) any Mortgage Loans that were set forth in a Mortgage Loan
Report that SCI did not elect to purchase in a Preliminary Purchase Notice.
F. No later than the Business Day immediately preceding a Closing (as
defined below), Sunset Mortgage shall deliver to SCI those due diligence
materials, reports and documents relating to the Mortgage Loans to be purchased
at such Closing further described in Attachment "C" hereto (the "Specified
Materials"). In addition, Sunset Mortgage shall provide SCI with any additional
documents and other information that SCI may reasonably request with respect to
any Mortgage Loans to be purchased by SCI hereunder. It shall be a condition to
the obligation of SCI to purchase any Mortgage Loan at a Closing that Sunset
Mortgage shall have timely provided to SCI all of the Specified Materials (and
any other documents and other information reasonably requested by SCI).
G. Each closing of the purchase of Mortgage Loans by SCI hereunder
(each a "Closing") shall take place at the principal offices of SCI, at the
address specified in Article IX. hereof, on a Business Day designated by SCI no
later than seven days after SCI elects to purchase such Mortgage Loans. At the
Closing, Sunset Mortgage shall execute and deliver to SCI a purchase and sale
agreement and an assignment of mortgage (in each case on forms agreed to by SCI
and Sunset Mortgage) and any and all additional documents and instruments
required to convey good and marketable title to the Mortgage Loans to SCI free
and clear of any liens, encumbrances or claims (and shall provide SCI with
customary representations and warranties to such effect as well as adequate
assurances that such Mortgage Loans satisfy the applicable parameters set forth
in the applicable Pricing Sheets, are valid obligations of the respective
borrowers and that no default, event of default, potential default or similar
occurrence exists with respect to such Mortgage Loans). At the Closing, unless
otherwise agreed upon by the parties, SCI shall purchase the Mortgage Loans for
the applicable purchase price payable in immediately available funds.
H. Sunset Mortgage shall use its best efforts to originate Mortgage
Loans that satisfy the criteria set forth in SCI's Pricing Sheets. SCI may, at
its election, request periodic accounting and other financial records from
Sunset Mortgage that demonstrate its performance of this agreement. Any
proprietary information and associated products, copyrights, trademarks and
logos developed by Sunset Mortgage shall remain the property of Sunset Mortgage.
I. SCI shall, in a professional manner, take all steps necessary to
perform its duties hereunder.
J. In addition to the other matters set forth in this Article, the
parties agree to the covenants and other matters set forth in Attachment "A"
hereto, which are incorporated by reference as if fully set forth herein.
ARTICLE II. PERIOD OF PERFORMANCE.
This Agreement shall be effective as of the Effective Date and shall expire on
the later of (i) three (3) years after the Effective Date, or (ii) with respect
to any projects, commercial loans or open contracts and/or related residual
income such date that all business has been completed.
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Thereafter, this Agreement shall be automatically renewed for successive one
year periods unless either party gives written notice of termination to the
other party at least thirty (30) days prior to the scheduled date of expiration.
Notwithstanding the foregoing, this Agreement shall be earlier terminated (x) at
any time by mutual agreement of the parties, (y) by either party, if SCI has not
completed a public offering of its securities (an "IPO") on or before June 30,
2004, or (z) at any time by SCI or Sunset Mortgage upon sixty (60) days' advance
written notice after an event constituting "cause" has occurred to the other
party. For purposes of this Agreement "cause" means a judgment by a competent
court that the subject party has committed fraud either against third parties or
against the other party to this Agreement; the bankruptcy, insolvency or
dissolution of the subject party or the material breach of this Agreement by the
subject party (that is not cured by the subject party within thirty (30) days
after receipt of written notice). Time is of the essence in this Agreement.
ARTICLE III. MANAGEMENT.
Each party shall designate a partner, officer or other senior person to be
responsible for the overall administration of such party's responsibilities
under this Agreement. Neither party shall have management authority over the
other outside the scope and performance of this Agreement.
ARTICLE IV. CONFIDENTIAL INFORMATION.
Sunset Mortgage acknowledges and agrees that in the course of the performance of
this Agreement or additional services pursuant to this Agreement, that it may be
given access to, or come into possession of, confidential information of SCI,
which information may contain trade secrets, proprietary data or other
confidential material of SCI. Therefore, the parties have executed a
Non-Disclosure Agreement which is attached hereto as "ATTACHMENT B", and
incorporated by reference as if fully set forth herein. Materials used in any
engagement undertaken pursuant to this Agreement shall not be altered or changed
without the consent of both parties.
ARTICLE V. NO PARTNERSHIP.
Nothing herein contained shall be construed to imply a joint venture,
partnership or principal-agent relationship between SCI and Sunset Mortgage, and
neither party shall have the right, power or authority to obligate or bind the
other in any manner whatsoever, except as otherwise agreed to in writing. The
parties do not contemplate a sharing of profits relating to the business of SCI
or the business of Sunset Mortgage so as to create a separate taxable entity
under Section 761 of the Internal Revenue Code of 1986, as amended, nor
co-ownership of a business or property so as to create a separate partnership
under the law of any jurisdiction, including, without limitation, Florida or
Maryland. Revenues and expenses relating to the Mortgage Loans hereunder and any
activities relating thereto shall be reported separately by the parties for tax
purposes. This provision would not eliminate the possibility that the parties
may enter into various revenue or equity sharing agreements with regard to any
Mortgage Loans that the parties may consider on a case by case basis. During the
performance of the any of the contemplated
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business activities set forth herein, SCI's employees will not be considered
employees of Sunset Mortgage, and vice versa, within the meaning or the
applications of any federal, state or local laws or regulations including, but
not limited to, laws or regulations covering unemployment insurance, old age
benefits, worker's compensation, industrial accident, labor or taxes of any
kind.
ARTICLE VI. TRADEMARK, TRADE NAME AND COPYRIGHTS.
This Agreement does not give either party any ownership rights or interest in
the other party's trade name, trademarks or copyrights.
ARTICLE VII. INDEMNIFICATION.
Each of SCI and Sunset Mortgage, at its own expense, shall indemnify, defend and
hold the other, its partners, shareholders, directors, officers, employees, and
agents harmless from and against any and all third-party suits, actions,
investigations and proceedings, and related costs and expenses (including,
reasonable attorney's fees) resulting solely and directly from the indemnifying
party's gross negligence, willful misconduct or material breach of this
Agreement. Neither SCI nor Sunset Mortgage shall be required hereunder to
defend, indemnify or hold harmless the other and/or its partners, shareholders,
directors, officers, employees and agents, or any of them, from any liability
resulting from the negligence, willful misconduct or material breach of this
Agreement by the party seeking indemnification or by any third-party. Each of
SCI and Sunset Mortgage agrees to give the other prompt written notice of any
claim or other matter as to which it believes this indemnification provision is
applicable.
ARTICLE VIII. INTELLECTUAL PROPERTY.
Work performed pursuant to this Agreement by either SCI and/or Sunset Mortgage
and information, materials, products and deliverables developed in connection
with business endeavors pursuant to this Agreement shall be the property of the
respective parties performing the work or creating the information. All
underlying methodology utilized by Sunset Mortgage and SCI, respectively, which
was created and/or developed by either prior to the date of this Agreement and
utilized in the course of performing their duties pursuant to this Agreement
shall not become the property of the other.
ARTICLE IX. GENERAL PROVISIONS.
A. Entire Agreement: This Agreement together with the attachments
hereto and all documents incorporated by reference herein, constitutes the
entire and sole agreement between the parties with respect to the subject matter
hereof and supersedes any prior agreements, negotiations, understandings, or
other matters, whether oral or written, with respect to the subject matter
hereof. This Agreement cannot be modified, changed or amended, except in writing
signed by a duly authorized representative of each of the parties.
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B. Conflict: In the event of any conflict, ambiguity or inconsistency
between this Agreement and any other document which may be annexed hereto, the
terms of this Agreement shall govern. Any conflicts or disputes that are not
amicably settled in the due course of this business relationship shall be
settled through binding arbitration, in accordance with the latest edition of
rules as set forth by the American Arbitration Association, such arbitration to
be held in Jacksonville, Florida. Said rulings in arbitration shall be
considered final and binding on the parties hereto and shall be enforceable in
any competent United States court.
C. Assignment and Delegation: Neither party shall voluntarily assign or
delegate this Agreement or any rights, duties or obligations hereunder to any
other person and/or entity without prior express written approval of the other
party; provided, that notwithstanding the foregoing a party may assign this
Agreement by operation of law to any successor to such party by merger or
consolidation (without the prior consent of the other party).
D. Notices: Any notice required or permitted to be given under this
Agreement shall be in writing, by hand delivery, commercial overnight courier or
registered or certified U.S. Mail, to the address stated below for Sunset
Mortgage or to the address stated below for SCI, and shall be deemed duly given
upon receipt, or if by registered or certified mail three (3) Business Days
following deposit in the U.S. Mail. The parties hereto may from time to time
designate in writing other addresses expressly for the purpose of receipt of
notice hereunder.
If to SCI: Sunset Capital Investments, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
If to Sunset Mortgage: Sunset Mortgage Company, L.P.
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxx Xxxxxx XX 00000
E. Severability: If any provision of this Agreement is declared invalid
or unenforceable, such provision shall be deemed modified to the extent
necessary and possible to render it valid and enforceable. In any event, the
unenforceability or invalidity of any provision shall not affect any other
provision of this Agreement, and this Agreement shall continue in full force and
effect, and be construed and enforced, as if such provision had not been
included, or had been modified as above provided, as the case may be.
F. Obligations of Sunset Mortgage. The obligations of Sunset Mortgage
hereunder shall be the joint and several obligations of each entity that
comprises Sunset Mortgage hereunder.
G. Governing Law: This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida without giving effect to its
choice of law principles.
H. Paragraph Headings: The paragraph headings set forth in this
Agreement are for the convenience of the parties, and in no way define, limit,
or describe the scope or intent of this Agreement and are to be given no legal
effect.
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I. Counterparts: This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
J. Attachments: The Attachments attached hereto are made a part of this
Agreement as if fully set forth herein.
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IN WITNESS WHEREOF, the parties, by their duly authorized representatives, have
caused this Agreement to be executed as of the date first written above.
SUNSET CAPITAL INVESTMENTS, INC.
By: Its Chief Executive Officer
Name: Xxxx Xxxxxx
--------------------------------------------------
Signature Date
SUNSET MORTGAGE COMPANY, L.P.
a Pennsylvania limited partnership
By: Avonwood Capital Corporation, its
general partner
By: Chairman and CEO
--------------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------------
/s/ XXXXX X. XXXXXX 10/15/03
--------------------------------------------------
Signature Date
SUNSET COMMERCIAL GROUP, LLC
a Pennsylvania limited liability company
By: Chairman and CEO
--------------------------------------------
Name:
--------------------------------------------
/s/ XXXXX X. XXXXXX 10/15/03
--------------------------------------------------
Signature Date
SUNSET DIRECT LENDING LLC
a Delaware limited liability company
By: Chairman and CEO
--------------------------------------------
Name:
--------------------------------------------
/s/ XXXXX X. XXXXXX 10/15/03
--------------------------------------------------
Signature Date
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ATTACHMENT "A"
ADDITIONAL PROVISIONS
In accordance with the provisions set forth in the foregoing Strategic Alliance
Agreement of which this Attachment forms and integral part, it is agreed and
understood between the parties as follows:
1) Sunset Mortgage shall be entitled to retain origination fees
with respect to any Mortgage Loans sold to SCI hereunder, as
well as any agreed to shared equity if either an acquisition
or participatory loan.
2) Sunset Mortgage can identify, and present for purchase by SCI,
qualified commercial and/or residential loan portfolios on a
case by case basis, as well as arrange for conduit financing
to other qualified commercial lenders. Fees and potential
participations will be agreed to on a case by case basis, and
said additional agreements, if so applicable, shall be added
to this schedule and agreement as further attachments.
ATTACHMENT "B"
NON-CIRCUMVENTION/NON-DISCLOSURE AGREEMENT
THE UNDERSIGNED SUNSET MORTGAGE, INTENDING TO BE LEGALLY BOUND, HEREBY
IRREVOCABLY AGREES NOT TO CIRCUMVENT, AVOID, BYPASS, OR OBVIATE SCI, DIRECTLY OR
INDIRECTLY, IN CONNECTION WITH THE ORIGINATION AND SALE OF MORTGAGE LOANS OR ANY
OTHER TRANSACTION INVOLVING ANY SALE, DISPOSITION OR PARTICIPATION IN ANY
MORTGAGE LOANS.
NOR SHALL SUNSET MORTGAGE DISCLOSE OR OTHERWISE REVEAL TO ANY THIRD PARTY, ANY
CONFIDENTIAL INFORMATION PROVIDED BY SCI, PARTICULARLY THAT CONCERNING SCI'S
LENDERS, BUSINESS, SECURITIES, BORROWERS, SELLERS, BUYERS, AFFILIATES, AGENT'S
NAMES, ADDRESSES, TELEX, TELEPHONE, EMAIL, FAX NUMBERS, OR OTHER MEANS OF ACCESS
THERETO, BANK ACCOUNTS, CODES OR REFERENCES, AND/OR ANY SUCH INFORMATION,
ADVISED TO SUNSET MORTGAGE AS BEING CONFIDENTIAL OR PRIVILEGED, WITHOUT THE
SPECIFIC WRITTEN CONSENT OF SCI.
IN THE EVENT OF CIRCUMVENTION, EITHER DIRECTLY OR INDIRECTLY, SCI SHALL BE
ENTITLED TO A LEGAL MONETARY PENALTY EQUAL TO THE MAXIMUM FINANCIAL BENEFITS IT
SHOULD HAVE REALIZED FROM SUCH TRANSACTIONS, INCLUDING ALL LEGAL EXPENSES IN THE
RECOVERY OF FUNDS. FURTHER, ANY DISPUTE ARISING FROM THE PERFORMANCE OF THIS
AGREEMENT SHALL BE SETTLED THROUGH BINDING ARBITRATION UNDER THE RULES OF THE
AMERICAN ARBITRATION ASSOCIATION, AND ANY SAID ARBITRATION PROCEEDINGS SHALL BE
HELD IN JACKSONVILLE IN THE STATE OF FLORIDA, USA.
THIS AGREEMENT SHALL BE BINDING ON THE PARTIES, HEREUNDER SIGNED, THEIR
SUCCESSORS, HEIRS, AND ASSIGNS.
FACSIMILE COPIES ARE CONSIDERED TO BE LEGAL DOCUMENTS.
SIGNATURES:
PARTIES TO THIS AGREEMENT:
SUNSET CAPITAL INVESTMENTS, INC.
By: Its Chief Executive Officer
Name: Xxxx Xxxxxx
/s/ XXXX XXXX XXXXXX 10/15/03
--------------------------------------------------
Signature Date
SUNSET MORTGAGE COMPANY, L.P.
a Pennsylvania limited partnership
By: Avonwood Capital Corporation, its
general partner
By: Chairman and CEO
--------------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------------
/s/ XXXXX X. XXXXXX 10/15/03
--------------------------------------------------
Signature Date
SUNSET COMMERCIAL GROUP, LLC
a Pennsylvania limited liability company
By: Chairman and CEO
--------------------------------------------
Name:
--------------------------------------------
/s/ XXXXX X. XXXXXX 10/15/03
--------------------------------------------------
Signature Date
SUNSET DIRECT LENDING LLC
a Delaware limited liability company
By: Chairman and CEO
--------------------------------------------
Name:
--------------------------------------------
/s/ XXXXX X. XXXXXX 10/15/03
--------------------------------------------------
Signature Date
ATTACHMENT "C"
SPECIFIED MATERIALS
1. All customary due diligence reports, documents and analyses
2. All other materials, documents and information reasonably
requested by SCI
